The US Government Vs. Personal Privacy, iPhone Edition

The FBI wants Apple to unlock an iPhone 5C. Make no mistake about it: This is an inflection point in our society. Whether or not you care about the iPhone, politics, or legal issues, this effects you regardless of where you are in the world.

100 years from now, historians will tell this story. And they will get it wrong. There is a belief that if we had reporters, microphones, and video cameras back in ancient times around historically significant events, we would get a better idea of the truth. But we have all that right now, plus the knowledge that this is a historically significant event. Yet we are still getting it wrong.

The public is lining up on the two sides of the debate. People are team FBI or team Apple. Both sides accuse the other of intentionally spreading propaganda and misinformation. Making matters worse, this is being played out in an election cycle. Therefore, it is highly politicized. No one has all of the information. And each side has been seeded with misinformation.

Our highly emotional opinions are based on incomplete or inaccurate information. Yet that doesn’t stop us from expressing absolute certainty about our take on the matter. I suppose you could say I’m team Apple. But in the broader sense, I’m team me. I’ve been following this since day one. Here are a few observations that were not a part of the early narrative on which your decision may have been based:

Apple Has Been Fully Cooperating with the FBI

From day one, Apple has been fully cooperating with the FBI. It hasn’t been half-hearted or grudging. Whenever the FBI has presented a legitimate court order for information on an iPhone, Apple, like every other tech company in America, has complied. If Apple has had access to the requested information, they have turned it over without a fight. Concerning recently revealed court documents, Mark Kesler from Modern Readers reports:

The filing specifies that Apple turned in two batches of information on December 5, after the company was asked to provide subscriber data. The declaration from Apple Global Privacy & Law Enforcement Compliance Team manager Lisa Olle does not specify what kind of information this was, but it’s speculated that this was iCloud subscriber data. On December 6, Apple was served a search warrant for emails, text messages, and other sensitive data related to three separate accounts. Ten days after that, officials asked Apple to furnish information on one name and seven separate accounts. For all these requests, Apple was able to comply within the same day.

This is not the story you are getting from the major media outlets because it doesn’t fit the narrative they are trying to set up. This is not Apple vs. the government. This is Apple in full cooperation with the government to the fullest extent possible. It is not that Apple complied reluctantly. They were reluctant in their refusal to comply. It just came to a point where the FBI asked for something that Apple didn’t have to give.

Conspiracy Theory Alert

One might wonder why the FBI asked Apple for something they knew Apple couldn’t supply. We have to take a step back to look at the broader narrative. For some time, the government has been secretly pushing tech companies to provide information about customers that was generally thought to be secured. Apple kept strengthening the security on their consumer products until they could claim that they could no longer comply with requests for information because even they couldn’t break the security.

This didn’t sit well with the government, who was likely looking for a way to challenge this claim. From the governments perspective, they can get anything they ask for. And no consumer electronics company was going to successfully defy them. Since then, the government has been looking for the perfect opportunity to challenge Apple in a public way and bring them down a notch or two. At bottom, it has nothing to do with public safety. It has to do with the government making it clear that no corporation is beyond the government’s control.

A few states enjoined the battle by mulling legislation that would make it illegal for a company like Apple to sell phones with encryption beyond the capabilities of the company to breach at will. Both the federal and state governments seem to agree that Apple’s encryption can’t be breached.

What the FBI demanded was that apple build a special operating system that stripped security measures from the iPhone 5C in question. They want what Apple as dubbed, “GovtOS”. This is a special OS that apple would create, then load onto the phone, replacing iOS 8 for that phone. The details are not as important as the fact that the FBI is demanding that Apple make them a special product that does not currently exist, and that Apple does not want to build.

The conspiracy theorist might suggest that the government was getting nervous about the fact that Apple was cooperating so freely, and needed to create an adversarial relationship artificially. So they asked for the one thing that Apple didn’t have, and thus, couldn’t provide. They pushed until they got the result they wanted.

One might also believe the FBI wanted to make sure the data could not be retrieved any other way. It was revealed that early in the process, the FBI told county officials to change the password on the iPhone. This rendered the iPhone inaccessible. Internet commenters could have told the FBI this was a bad idea. It is hard to believe that the FBI tech division is less competent than Internet commenters.

Though Apple was cooperating with them, the FBI did this without Apple’s consent. It looks suspiciously like the FBI wanted this phone to be inaccessible by any means other than by forcing Apple to make a product for them that would prove that even Apple wasn’t above the government.

The other suspicious thing is that Apple had been cooperating with the FBI in secret. But the FBI decided to make this request and denial public. It appears as if they didn’t want the private contents of a killer’s phone. They wanted to win a public battle against Apple.

…But that is only if you are engaging in conspiracy theories.

It Is Only the One Phone

From the beginning, I found this argument to be disingenuous. I have been shocked by the number of smart people who have fallen for it. If you are one of those smart people who have fallen for it, you should consider a few things that may not have been obvious at the beginning.

If the government forces Apple to create an insecure OS for this device, they have over a dozen more waiting in the wings. Apple will either have to make this one so that it can bypass security on all such iPhones, or they will have to build a new GovtOS for every iPhone the government wants access to. Either way, it is not about just this one phone, and never has been.

The director of the FBI has conceded that future judges will look to his battle with Apple as a precedent for law enforcement access to locked or encrypted mobile devices, the first time the government has conceded that the implications of the case stretch beyond an investigation into the San Bernardino terrorist attacks.

Conspiracy Theory Alert

From the beginning of the heightened rhetoric, the FBI has been positioning this as Apple refusing to unlock one dead terrorist’s outdated phone. How could any right-thinking person possibly be against that? But now we know that it is not about that phone, what phone is it about?

Ultimately, it is about your phone.

The San Bernardino police chief made some startlingly forthright admissions about the case. In a recent interview, he stated:

I'll be honest with you, I think that there is a reasonably good chance that there is nothing of any value on the phone…

And:

The worst-case scenario obviously, is that maybe there was some information on there that would lead to a larger plot or to a larger network and therefore are other people out there that are still a potential danger. I think the probability is probably low…

The reason we know these statements are likely accurate is that the shooters destroyed their personal phones. They could have also destroyed this one, but didn’t. This was a work-issued phone. It was not destroyed because, in all likelihood, there was nothing incriminating on it to begin with. This is why the FBI could so cavalierly sabotage Apple’s cooperation at every turn. They never cared about the information on this phone (a ton of which, they already got). They only care about the precedence set by the case. And the precedence will effect your phone, not this one.

Conclusion: What’s Really at Stake

In the linked interview with the police chief was the following exchange:

INSKEEP: Are you fearful that this form of encryption will completely change the rules of the game?

BURGUAN: I think it very well could, yes.

I believe this is the heart of the whole matter. It is not about Apple’s lack of cooperation, or one dead terrorist’s phone. This is about fear. Law enforcement is afraid of the new world where they do not have access to all of your most intimate communication. Intimacy is what you share with someone, or a small group of someones, that you wouldn’t share with anyone else. This type of intimacy is all but impossible without privacy.

Sometimes what we share is sweet nothings with a lover. Sometimes it is the recipe to our restaurant’s world-class, chicken soup. Still other times, it may be a corporate or state secret. And on the rare occasion, it might be about something horrible we plan to do, or are thinking about doing. How do you expose the latter without destroying the intimacy required by the former? You can’t.

Were you a terrorist sympathizer five years ago when you were young and idealistic? Perhaps you had some encrypted discussions with a friend about these issues that you would never be able to discuss publicly. You have worked through the issues, and feel very differently about it now. What happens when the government (with whatever version of GovtOS they are using) discovers you were once a sympathizer, and wreaks havoc through the lives of everyone with whom you had contact?

That is exactly what they fear they will not be able to do. Right now, they can. But they are staring down the barrel of iPhones that they can’t unlock. And if they can’t compel Apple to do it for them, they fear their job will go from difficult to impossible.

Let’s be clear: Law enforcement is not remotely interested in your civil liberties. They are interested in stopping crime at any cost. I’m not even suggesting that is a bad thing. It is just a true thing. It is someone else’s job to ensure your civil liberties.

They will tell you that you have the right to remain silent. Then browbeat you into answering incriminating questions. They will tell you about your right to an attorney. Then get as much out of you before the attorney can show up. They will ask for your password when they know they have no legal right to it. They will come to your door and ask to look around even though they know they need a warrant limited to specific things.

They will take advantage of your ignorance of your civil liberties to accomplish their goals. Any civil liberty they can get you to voluntarily give up, they will. Right now, because of their fear, they are asking the American people to give up the notion of intimacy. They are suggesting that the only thing you should want to hide from the law are illegal acts. Other than that, you should have nothing to hide. So don’t!

Well I, for one, have plenty to hide. And I intend to go on hiding it for as long as I can. I have fetishes and fantasies, ideas, plans, hopes, dreams, finances, health details, pin numbers and passwords, writings, ramblings, conversations, and photographs that are for my eyes only. They are mine to share with whom I please.

Again, let me be clear: I would rather die at the hands of a criminal than have no aspect of my life I cannot keep private. If I am not interested in giving up my civil liberties to save my life, rest assured, I’m not interested in giving them up to save yours either. I did not sign up for existence in a well-guarded fish bowl. If existence is all life is, I’m not sure why we even bother with civil liberties at all.

The FBI fears they will not be able to do their job in a world where consumers can keep secrets. I fear that the FBI will be able to do their job, but at the expense of my civil liberties. I am not willing to give up my civil liberties.

There is a certain class of the privileged majority who cannot understand this position because they have never been without civil liberties. They have options for keeping secrets that others may not. Their relationship with law enforcement is that the police are always there to protect them. As a black male, that is not my relationship with the police. And even in this age of enlightened modernity, I have experienced what it is like to have my civil rights taken away.

Perhaps I see the world in a way that the privileged class cannot. I know that none of us are ever secure. It is a fool’s deal to trade privacy for the illusion of security. You will not be more secure. Your loss of privacy will just make us all a little less human. This is not an individual decision. What is chosen at this inflection point will be chosen for all. Either we will all be able to keep our secrets, or none of us will. My hope is that those with power will make a decision that at least considers the perspective of those without.